The Fifth Amendment to the U.S. Constitution provides five distinct procedural safeguards for those accused of a crime and to secure life, liberty, and property. Those safeguards are:


  • right to grand jury indictment for capital or infamous crime; 
  • double jeopardy, a protection against a second prosecution following an acquittal or conviction; 
  • self-incrimination, a person charged with a crime cannot be compelled to testify against themselves; 
  • due process, protection of life, liberty, and property from unlawful government action; and 
  • “takings clause,” the power of the government to exercise eminent domain to take private property.


It was within this due process safeguard (made applicable to the states by the Fourteen Amendment) that the Miranda “right to remain silent” was born in 1966. 


At that time, a criminal suspects did not have to be informed by the police that they had a right to remain silent and to have counsel before police interrogation. 


Two U.S. Supreme Court decisions in 1958 made this abundantly clear. 


Those decisions were:


  • Crooker v. California: Decided on June 30, 1958, this case involved a murder suspect who was questioned by the Los Angeles police for fourteen hours despite repeated requests for counsel and told that he could see an attorney only after the investigation was over. He confessed. The defendant conceded to the court that he gave the confession voluntarily but was denied the right to counsel. The court held that since the confession was voluntary and the defendant was aware of his right to silence, the denial of counsel did not violate due process.
  • Cicenia v. Lagay: Decided on June 30, 1958, this case involved a criminal suspect and his attorney making requests to see each other before an interrogation, but police denied both requests. By the time the suspect saw his attorney, he had provided police with a detailed written confession. The court held that since the suspect could not establish that the confession was involuntarily given, the denial of the right to counsel did not violate due process.


Miranda: Right to be Warned


Eight years later, the Supreme Court was again called upon to address whether a criminal suspect has the right to remain silent in the face of a police interrogation.


On March 3, 1963, police arrested Ernesto Miranda for robbery, rape, and kidnapping in Phoenix, Arizona. Miranda was held in an interrogation room by police officers, detectives, and a prosecuting attorney. After two hours of questioning, he gave the police an oral and written confession. He was never advised of the right to counsel.


On June 12, 1963, Miranda was tried, convicted, and sentenced to 20 to 30 years on the rape/kidnapping charges. His confession was the most critical piece of evidence against him. His attorney had sought to have the confession thrown out because he was denied counsel at both the interrogation and preliminary hearing stage.


Miranda appealed his conviction to the Arizona Supreme Court, arguing that law enforcement violated his Fifth and Sixth Amendment rights to silence and counsel. That court denied his appeal on June 12, 1965.


Handwritten Pro-Se Writ Changes Legal Landscape


Miranda filed a handwritten petition for writ of certiorari with the U.S. Supreme Court raising the same Fifth and Sixth Amendment violations as presented to the Arizona Supreme Court.


On November 15, 1965, the court accepted the petition and agreed to hear Miranda’s case. Eight months later (June 13, 1966), the court ruled that Miranda’s confession was involuntary because his Fifth and Sixth Amendment rights to silence and counsel had been violated by the police and the prosecution. 


Miranda v. Arizona became one of American history’s most heralded and recognized Supreme Court decisions. 


The ninth-grade dropout who gave this decision to American criminal justice was released from prison on parole in 1972 only to be stabbed to death in the bathroom of a Phoenix barroom in 1976—and the man who killed him was given his “Miranda Rights” after his arrest.


And just what are the “Miranda Rights?”


After taking a criminal suspect into custody, the police must advise the suspect of the following Miranda Rights:


“You have a right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney and to have an attorney present during any questioning.”


History of Police Abuse to Coerce Confessions


Law enforcement did not immediately embrace their mandated duty to advise criminal suspects of their rights. When Miranda was decided, many police departments, especially in southern states like Texas, still employed varying “third-degree” interrogation methods. 


These methods included severe physical abuse and outright torture to compel confessions –an illegal practice President Herbert Hoover’s Wickersham Commission (appointed in 1929) found in a section of its final report called “Lawlessness in Law Enforcement.”


Seven years later, the Supreme Court in Brown v. Mississippi held that confessions obtained by using force violated the due process provisions of the Fourteenth Amendment. 


The case involved three black men who were arrested for the murder of a white man. One of the men was repeatedly hung to a tree and severely beaten before he confessed. He was taken to jail, where he was soon joined by the other two black men, both of whom were stripped and beaten with leather straps until they, too, confessed. 


Although the abusive method of securing a confession was ruled unconstitutional in Brown v. Mississippi, the Supreme Court still found itself addressing the daunting issue of coerced confessions before Miranda was decided in 1966.


These are some of the leading cases the court decided during those three decades:


  • 1940 Chambers v. Florida: mental torture, accompanied by threats of physical violence, violated due process under the 14th amendment.
  • 1943 McNabb v. United States: two second-degree murder convictions overturned after three days of police questioning in the absence of counsel.
  • 1944 Ashcroft v. Tennessee: confession obtained after 36-hour interrogation under intense bright lights, even without physical brutality, violated due process.


Miranda Diminished 


While Miranda Rights would serve as a constitutional guidepost for eliminating coercive, sometimes brutal methods, it didn’t take long before the court began to whittle away the strength of Miranda as the court turned to a more law-and-order conservatism trend. 


These Miranda Rights-diminishing cases include:


  • 1971 Harris v. New York: incriminating trustworthy custodial statements made to the police without Miranda Rights warning can be used to impeach a defendant who testifies that he did not commit the offense.
  • 1977 Oregon v. Mathiason: Police are not required to give Miranda Rights warning in every situation involving police questioning, so long as the individual has not been arrested and is free to go.
  • 1980 Rhode Island v. Ennis: contrived conversation between police designed to secure incriminating evidence was not an “interrogation” within the meaning of Miranda; therefore, a Miranda-Rights warning is not required.
  • 1984 New York v. Quarles: Confession obtained without Miranda Rights warning admissible when public safety concerns prompted police questioning.
  • 1989 Pennsylvania v. MunizPolice can question and videotape a D.U.I. suspect without giving Miranda warnings.
  • 2010 Berghuis v. Thompkins: Miranda right to remain silent must be explicitly invoked in order to cease police questioning. Refusing to answer by silence is not enough to stop police questioning.
  • 2012 Howes v. Florida: Questioning and securing a confession from a prisoner in a custodial situation after he was told he was free to leave and return to his cell did not require a Miranda Rights warning.
  • 2013 Salinas v. Texas: Suspect must expressly invoke his right to remain silent to be protected by Miranda Rights. Silence alone, or refusal to answer police questions, is not enough to invoke Miranda protections.


In a decision, this past term that went under the radar because of the abortion and gun rights cases, the politically conservative Supreme Court handed down a ruling that many legal scholars and civil rights experts believe could be the death knell to Miranda


The June 23, 2022 decision, Vega v. Tekoh, held that police who fail to give Miranda Rights warnings are immune from civil damages under the federal civil rights statute, 42 U.S.C. Sec. 1983.


In other words, the police enjoy a license to violate the Constitutional rights of criminal suspects without any fear of being sued and held liable for civil damages.


Less than a month after the horrible ruling in Vega v. Tekoh, the Fifth Circuit Court of Appeals in Coulter v. United States on July 18, 2022, issued a ruling that could gut the Miranda Rights in factual situations such as those in both Miranda and Coulter.


The Coulter case involves a driver who, during a vehicle traffic stop, revealed to a Texas police officer in response to questioning that a firearm and marijuana were in a backpack in his vehicle. The driver, Braylon Ray Coulter, was handcuffed as a precaution for officer safety during the initial questioning (when he revealed the gun and drugs) and while the police searched his vehicle.


Writing for the majority, Judge Edith Jones did a “cost-benefit” analysis—a disturbing decision-making process that it was more important to allow Coulter admission than it was to protect his Miranda Rights. 


The core of Judge Jones’s cost-benefit analysis was that suppressing the unlawful incriminating admissions would have made it difficult for the prosecution to convict an obviously guilty defendant—an obvious showing of guilt, she reasoned, negated the constitutional duty to protect Miranda Rights.


University of Cincinnati College of Law Professor Mark Godsey said he believes Judge Jones conducted the unlawful “cost-benefit” analysis as bait for the current conservative Supreme Court to take up the case and further erode Miranda Rights.


Invitation to Repeal Miranda?


The Coulter decision, we also believe, is undeniably an invitation to the Alito-Thomas right-wing alliance on the Supreme Court to further gut or even overturn Miranda.


That’s why it is critically important for anyone detained and subjected to police questioning about any suspected criminal activity should immediately, and in explicit terms, invoke their right to remain silent and request the presence of an attorney.  These are literally powerful words of Constitutional significance that can have a life altering impact on the rights of the accused.